Is “Clear and Convincing Evidence” the Appropriate Standard of Proof for Real Estate Agents?
Standards of Proof in Administrative Hearings Differ. The state Office of Administrative Hearings (OAH) conducts administrative hearings on charges filed against various types of licensees, including doctors, lawyers, and real estate salespersons and brokers. The OAH applies two differing standards of proof in such hearings to determine whether to revoke or suspend a license: (1) the preponderance of the evidence, which is analogous to “the majority” of the evidence, and (2) the much higher standard of clear and convincing evidence to a reasonable certainty. In general, the lower standard—preponderance of the evidence—applies to state occupational licenses that do not have education and training requirements, while the higher standard applies to licenses that do require education and training. According to OAH, since statute—with few exceptions—does not provide guidance as to which standard to apply for the different licensed occupations, its approach is based on case law (particularly
